S T A T E O F N E W Y O R K ________________________________________________________________________ 196 2015-2016 Regular Sessions I N A S S E M B L Y (PREFILED) January 7, 2015 ___________ Introduced by M. of A. GANTT -- read once and referred to the Committee on Transportation AN ACT to amend the vehicle and traffic law, in relation to increasing the criminal penalties for driving while ability impaired and driving while intoxicated or while ability impaired by drugs and increasing the penalties for aggravated unlicensed operation of a vehicle in the first and second degrees THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 1 of section 1193 of the vehicle and traffic 2 law, as added by chapter 47 of the laws of 1988, paragraph (a) as 3 amended by chapter 75 of the laws of 1994, paragraphs (b) and (c) as 4 amended by chapter 169 of the laws of 2013, subparagraph (ii-a) of para- 5 graph (c) as added by chapter 191 of the laws of 2014, paragraph (d) as 6 amended by chapter 732 of the laws of 2006, paragraph (f) as added by 7 chapter 714 of the laws of 1990 and paragraph (g) as amended by section 8 57 of part A of chapter 56 of the laws of 2010, is amended to read as 9 follows: 10 1. Criminal penalties. (a) Driving while ability impaired. A violation 11 of subdivision one of section eleven hundred ninety-two of this article 12 shall be a traffic infraction and shall be punishable by a fine of not 13 less than [three] FIVE hundred dollars nor more than [five] SEVEN 14 hundred FIFTY dollars or by imprisonment in a penitentiary or county 15 jail for not more than fifteen days, or by both such fine and imprison- 16 ment. A person who operates a vehicle in violation of such subdivision 17 after having been convicted of a violation of any subdivision of section 18 eleven hundred ninety-two of this article within the preceding five 19 years shall be punished by a fine of not less than [five] SEVEN hundred 20 FIFTY dollars nor more than [seven hundred fifty] ONE THOUSAND dollars, 21 or by imprisonment of not more than thirty days in a penitentiary or 22 county jail or by both such fine and imprisonment. A person who operates 23 a vehicle in violation of such subdivision after having been convicted 24 two or more times of a violation of any subdivision of section eleven EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03024-01-5 A. 196 2 1 hundred ninety-two of this article within the preceding ten years shall 2 be guilty of a misdemeanor, and shall be punished by a fine of not less 3 than [seven hundred fifty] ONE THOUSAND dollars nor more than fifteen 4 hundred dollars, or by imprisonment of not more than one hundred eighty 5 days in a penitentiary or county jail or by both such fine and imprison- 6 ment. 7 (b) Driving while intoxicated or while ability impaired by drugs or 8 while ability impaired by the combined influence of drugs or of alcohol 9 and any drug or drugs; aggravated driving while intoxicated; misdemeanor 10 offenses. (i) A violation of subdivision two, three, four or four-a of 11 section eleven hundred ninety-two of this article shall be a misdemeanor 12 and shall be punishable by a fine of not less than [five] SEVEN hundred 13 FIFTY dollars nor more than one thousand FIVE HUNDRED dollars, or by 14 imprisonment in a penitentiary or county jail for not more than one 15 year, or by both such fine and imprisonment. A violation of paragraph 16 (a) of subdivision two-a of section eleven hundred ninety-two of this 17 article shall be a misdemeanor and shall be punishable by a fine of not 18 less than one thousand dollars nor more than two thousand five hundred 19 dollars or by imprisonment in a penitentiary or county jail for not more 20 than one year, or by both such fine and imprisonment. 21 (ii) In addition to the imposition of any fine or period of imprison- 22 ment set forth in this paragraph, the court shall also sentence such 23 person convicted of, or adjudicated a youthful offender for, a violation 24 of subdivision two, two-a or three of section eleven hundred ninety-two 25 of this article to a term of probation or conditional discharge, as a 26 condition of which it shall order such person to install and maintain, 27 in accordance with the provisions of section eleven hundred ninety-eight 28 of this article, an ignition interlock device in any motor vehicle owned 29 or operated by such person during the term of such probation or condi- 30 tional discharge imposed for such violation of section eleven hundred 31 ninety-two of this article and in no event for a period of less than 32 twelve months; provided, however, that such period of interlock 33 restriction shall terminate upon submission of proof that such person 34 installed and maintained an ignition interlock device for at least six 35 months, unless the court ordered such person to install and maintain an 36 ignition interlock device for a longer period as authorized by this 37 subparagraph and specified in such order. The period of interlock 38 restriction shall commence from the earlier of the date of sentencing, 39 or the date that an ignition interlock device was installed in advance 40 of sentencing. Provided, however, the court may not authorize the opera- 41 tion of a motor vehicle by any person whose license or privilege to 42 operate a motor vehicle has been revoked pursuant to the provisions of 43 this section. 44 (c) Felony offenses. (i) A person who operates a vehicle (A) in 45 violation of subdivision two, two-a, three, four or four-a of section 46 eleven hundred ninety-two of this article after having been convicted of 47 a violation of subdivision two, two-a, three, four or four-a of such 48 section or of vehicular assault in the second or first degree, as 49 defined, respectively, in sections 120.03 and 120.04 and aggravated 50 vehicular assault as defined in section 120.04-a of the penal law or of 51 vehicular manslaughter in the second or first degree, as defined, 52 respectively, in sections 125.12 and 125.13 and aggravated vehicular 53 homicide as defined in section 125.14 of such law, within the preceding 54 ten years, or (B) in violation of paragraph (b) of subdivision two-a of 55 section eleven hundred ninety-two of this article shall be guilty of a 56 class E felony, and shall be punished by a fine of not less than one A. 196 3 1 thousand FIVE HUNDRED dollars nor more than five thousand dollars or by 2 a period of imprisonment as provided in the penal law, or by both such 3 fine and imprisonment. 4 (ii) A person who operates a vehicle in violation of subdivision two, 5 two-a, three, four or four-a of section eleven hundred ninety-two of 6 this article after having been convicted of a violation of subdivision 7 two, two-a, three, four or four-a of such section or of vehicular 8 assault in the second or first degree, as defined, respectively, in 9 sections 120.03 and 120.04 and aggravated vehicular assault as defined 10 in section 120.04-a of the penal law or of vehicular manslaughter in the 11 second or first degree, as defined, respectively, in sections 125.12 and 12 125.13 and aggravated vehicular homicide as defined in section 125.14 of 13 such law, twice within the preceding ten years, shall be guilty of a 14 class D felony, and shall be punished by a fine of not less than two 15 thousand FIVE HUNDRED dollars nor more than ten thousand dollars or by a 16 period of imprisonment as provided in the penal law, or by both such 17 fine and imprisonment. 18 (ii-a) A person who operates a vehicle in violation of subdivision 19 two, two-a, three, four or four-a of section eleven hundred ninety-two 20 of this article after having been convicted of a violation of subdivi- 21 sion two, two-a, three, four or four-a of such section or of vehicular 22 assault in the second or first degree, as defined, respectively, in 23 sections 120.03 and 120.04 and aggravated vehicular assault as defined 24 in section 120.04-a of the penal law or of vehicular manslaughter in the 25 second or first degree, as defined, respectively, in sections 125.12 and 26 125.13 and aggravated vehicular homicide as defined in section 125.14 of 27 such law, three or more times within the preceding fifteen years, shall 28 be guilty of a class D felony, and shall be punished by a fine of not 29 less than two thousand dollars nor more than ten thousand dollars or by 30 a period of imprisonment as provided in the penal law, or by both such 31 fine and imprisonment. 32 (iii) In addition to the imposition of any fine or period of imprison- 33 ment set forth in this paragraph, the court shall also sentence such 34 person convicted of, or adjudicated a youthful offender for, a violation 35 of subdivision two, two-a or three of section eleven hundred ninety-two 36 of this article to a period of probation or conditional discharge, as a 37 condition of which it shall order such person to install and maintain, 38 in accordance with the provisions of section eleven hundred ninety-eight 39 of this article, an ignition interlock device in any motor vehicle owned 40 or operated by such person during the term of such probation or condi- 41 tional discharge imposed for such violation of section eleven hundred 42 ninety-two of this article and in no event for a period of less than 43 twelve months; provided, however, that such period of interlock 44 restriction shall terminate upon submission of proof that such person 45 installed and maintained an ignition interlock device for at least six 46 months, unless the court ordered such person to install and maintain a 47 ignition interlock device for a longer period as authorized by this 48 subparagraph and specified in such order. The period of interlock 49 restriction shall commence from the earlier of the date of sentencing, 50 or the date that an ignition interlock device was installed in advance 51 of sentencing. Provided, however, the court may not authorize the opera- 52 tion of a motor vehicle by any person whose license or privilege to 53 operate a motor vehicle has been revoked pursuant to the provisions of 54 this section. 55 (d) Alcohol or drug related offenses; special vehicles. (1) Except as 56 provided in subparagraph four of this paragraph, a violation of subdivi- A. 196 4 1 sion one, two, three, four or four-a of section eleven hundred ninety- 2 two of this article wherein the violator is operating a taxicab as 3 defined in section one hundred forty-eight-a of this chapter, or livery 4 as defined in section one hundred twenty-one-e of this chapter, and such 5 taxicab or livery is carrying a passenger for compensation, or a truck 6 with a GVWR of more than eighteen thousand pounds but not more than 7 twenty-six thousand pounds and which is not a commercial motor vehicle 8 shall be a misdemeanor punishable by a fine of not less than [five 9 hundred] ONE THOUSAND dollars nor more than [fifteen] TWO THOUSAND FIVE 10 hundred dollars or by a period of imprisonment as provided in the penal 11 law, or by both such fine and imprisonment. A violation of subdivision 12 two-a of section eleven hundred ninety-two of this article wherein the 13 violator is operating a taxicab as defined in section one hundred 14 forty-eight-a of this chapter, or livery as defined in section one 15 hundred twenty-one-e of this chapter, and such taxicab or livery is 16 carrying a passenger for compensation, or a truck with a GVWR of more 17 than eighteen thousand pounds but not more than twenty-six thousand 18 pounds and which is not a commercial motor vehicle shall be a class E 19 felony punishable by a fine of not less than one thousand dollars nor 20 more than five thousand dollars or by a period of imprisonment as 21 provided in the penal law, or by both such fine and imprisonment. 22 (1-a) A violation of subdivision one of section eleven hundred nine- 23 ty-two of this article wherein the violator is operating a school bus as 24 defined in section one hundred forty-two of this chapter and such school 25 bus is carrying at least one student passenger shall be a misdemeanor 26 punishable by a fine of not less than [five hundred] ONE THOUSAND 27 dollars nor more than [fifteen] TWO THOUSAND FIVE hundred dollars or by 28 a period of imprisonment as provided in the penal law, or by both such 29 fine and imprisonment. 30 (2) A violation of subdivision five of section eleven hundred ninety- 31 two of this article shall be a traffic infraction punishable as provided 32 in paragraph (a) of this subdivision. Except as provided in subparagraph 33 three or five of this paragraph, a violation of subdivision one, two, 34 three, four, four-a or six of section eleven hundred ninety-two of this 35 article wherein the violator is operating a commercial motor vehicle, or 36 any motor vehicle registered or registerable under schedule F of subdi- 37 vision seven of section four hundred one of this chapter shall be a 38 misdemeanor. A violation of subdivision one, two, three, four or four-a 39 of section eleven hundred ninety-two of this article shall be punishable 40 by a fine of not less than [five hundred] ONE THOUSAND dollars nor more 41 than [fifteen] TWO THOUSAND FIVE hundred dollars or by a period of 42 imprisonment as provided in the penal law, or by both such fine and 43 imprisonment. A violation of subdivision six of section eleven hundred 44 ninety-two of this article shall be punishable by a fine of not less 45 than [five hundred] ONE THOUSAND dollars nor more than [fifteen] TWO 46 THOUSAND FIVE hundred dollars or by a period of imprisonment not to 47 exceed one hundred eighty days, or by both such fine and imprisonment. A 48 person who operates any such vehicle in violation of such subdivision 49 six after having been convicted of a violation of subdivision one, two, 50 two-a, three, four, four-a or six of section eleven hundred ninety-two 51 of this article within the preceding five years shall be punishable by a 52 fine of not less than TWO THOUSAND five hundred dollars nor more than 53 [fifteen hundred] FIVE THOUSAND dollars or by a period of imprisonment 54 as provided in the penal law, or by both such fine and imprisonment. A 55 violation of subdivision two-a of section eleven hundred ninety-two of 56 this article wherein the violator is operating a commercial motor vehi- A. 196 5 1 cle, or any motor vehicle registered or registerable under schedule F of 2 subdivision seven of section four hundred one of this chapter shall be a 3 class E felony punishable by a fine of not less than one thousand 4 dollars nor more than five thousand dollars or by a period of imprison- 5 ment as provided in the penal law, or by both such fine and imprison- 6 ment. 7 (3) A violation of subdivision one of section eleven hundred ninety- 8 two of this article wherein the violator is operating a motor vehicle 9 with a gross vehicle weight rating of more than eighteen thousand pounds 10 which contains flammable gas, radioactive materials or explosives shall 11 be a misdemeanor punishable by a fine of not less than TWO THOUSAND five 12 hundred dollars nor more than [fifteen hundred] FIVE THOUSAND dollars or 13 by a period of imprisonment as provided in the penal law, or by both 14 such fine and imprisonment. 15 (4) (i) A person who operates a vehicle in violation of subdivision 16 one, two, two-a, three, four or four-a of section eleven hundred nine- 17 ty-two of this article and which is punishable as provided in subpara- 18 graph one, one-a, two or three of this paragraph after having been 19 convicted of a violation of any such subdivision of section eleven 20 hundred ninety-two of this article and penalized under subparagraph one, 21 one-a, two or three of this paragraph within the preceding ten years, 22 shall be guilty of a class E felony, which shall be punishable by a fine 23 of not less than [one] TWO thousand FIVE HUNDRED dollars nor more than 24 [five] TEN thousand dollars, or by a period of imprisonment as provided 25 in the penal law, or by both such fine and imprisonment. A person who 26 operates a vehicle in violation of subdivision six of section eleven 27 hundred ninety-two of this article after having been convicted of two or 28 more violations of subdivisions one, two, two-a, three, four, four-a or 29 six of section eleven hundred ninety-two of this article within the 30 preceding five years, any one of which was a misdemeanor, shall be guil- 31 ty of a class E felony, which shall be punishable by a fine of not less 32 than [one] THREE thousand FIVE HUNDRED dollars nor more than [five] TEN 33 thousand dollars, or by a period of imprisonment as provided in the 34 penal law, or by both such fine and imprisonment. In addition, any 35 person sentenced pursuant to this subparagraph shall be subject to the 36 disqualification provided in subparagraph three of paragraph (e) of 37 subdivision two of this section. 38 (ii) A person who operates a vehicle in violation of subdivision one, 39 two, two-a, three, four or four-a of section eleven hundred ninety-two 40 of this article and which is punishable as provided in subparagraph one, 41 one-a, two or three of this paragraph after having been convicted of a 42 violation of any such subdivision of section eleven hundred ninety-two 43 of this article and penalized under subparagraph one, one-a, two or 44 three of this paragraph twice within the preceding ten years, shall be 45 guilty of a class D felony, which shall be punishable by a fine of not 46 less than [two] FIVE thousand dollars nor more than ten thousand 47 dollars, or by a period of imprisonment as provided in the penal law, or 48 by both such fine and imprisonment. A person who operates a vehicle in 49 violation of subdivision six of section eleven hundred ninety-two of 50 this article after having been convicted of three or more violations of 51 subdivisions one, two, two-a, three, four, four-a or six of section 52 eleven hundred ninety-two of this article within the preceding five 53 years, any one of which was a misdemeanor, shall be guilty of a class D 54 felony, which shall be punishable by a fine of not less than [two] FIVE 55 thousand dollars nor more than ten thousand dollars, or by a period of 56 imprisonment as provided in the penal law, or by both such fine and A. 196 6 1 imprisonment. In addition, any person sentenced pursuant to this subpar- 2 agraph shall be subject to the disqualification provided in subparagraph 3 three of paragraph (e) of subdivision two of this section. 4 (4-a) A violation of subdivision two, three, four or four-a of section 5 eleven hundred ninety-two of this article wherein the violator is oper- 6 ating a school bus as defined in section one hundred forty-two of this 7 chapter and such school bus is carrying at least one student passenger 8 shall be a class E felony punishable by a fine of not less than [one] 9 TWO thousand FIVE HUNDRED dollars nor more than [five] TEN thousand 10 dollars, or by a period of imprisonment as provided in the penal law, or 11 by both such fine and imprisonment. A violation of subdivision two-a of 12 section eleven hundred ninety-two of this article wherein the violator 13 is operating a school bus as defined in section one hundred forty-two of 14 this chapter and such school bus is carrying at least one student 15 passenger shall be a class D felony punishable by a fine of not less 16 than two thousand dollars nor more than ten thousand dollars, or by a 17 period of imprisonment as provided in the penal law, or by both such 18 fine and imprisonment. 19 (5) A violation of subdivision two, three, four or four-a of section 20 eleven hundred ninety-two of this article wherein the violator is oper- 21 ating a motor vehicle with a gross vehicle weight rating of more than 22 eighteen thousand pounds which contains flammable gas, radioactive mate- 23 rials or explosives, shall be a class E felony punishable by a fine of 24 not less than [one] TWO thousand FIVE HUNDRED dollars NOR MORE THAN TEN 25 THOUSAND DOLLARS and such other penalties as provided for in the penal 26 law; provided, however, that a conviction for such violation shall not 27 be considered a predicate felony pursuant to section 70.06 of such law, 28 or a previous felony conviction pursuant to section 70.10 of such law. A 29 violation of subdivision two-a of section eleven hundred ninety-two of 30 this article wherein the violator is operating a motor vehicle with a 31 gross vehicle weight rating of more than eighteen thousand pounds which 32 contains flammable gas, radioactive materials or explosives, shall be a 33 class D felony punishable by a fine of not less than two thousand nor 34 more than ten thousand dollars and such other penalties as provided for 35 in the penal law; provided, however, that a conviction for such 36 violation shall not be considered a predicate felony pursuant to section 37 70.06 of such law, or a previous felony conviction pursuant to section 38 70.10 of such law. 39 (6) The sentences required to be imposed by subparagraph one, one-a, 40 two, three, four, four-a or five of this paragraph shall be imposed 41 notwithstanding any contrary provision of this chapter or the penal law. 42 (7) Nothing contained in this paragraph shall prohibit the imposition 43 of a charge of any other felony set forth in this or any other provision 44 of law for any acts arising out of the same incident. 45 (e) Certain sentences prohibited. Notwithstanding any provisions of 46 the penal law, no judge or magistrate shall impose a sentence of uncon- 47 ditional discharge for a violation of any subdivision of section eleven 48 hundred ninety-two of this article nor shall a judge or magistrate 49 impose a sentence of conditional discharge, IMPRISONMENT or probation 50 unless such conditional discharge, IMPRISONMENT or probation is accompa- 51 nied by a sentence of a fine as provided in this subdivision. 52 (f) Where the court imposes a sentence for a violation of section 53 eleven hundred ninety-two of this article, the court may require the 54 defendant, as a part of or as a condition of such sentence, to attend a 55 single session conducted by a victims impact program. For purposes of 56 this section, "victims impact program" means a program operated by a A. 196 7 1 county, a city with a population of one million or more, by a not-for- 2 profit organization authorized by any such county or city, or a combina- 3 tion thereof, in which presentations are made concerning the impact of 4 operating a motor vehicle while under the influence of alcohol or drugs 5 to one or more persons who have been convicted of such offenses. A 6 description of any such program shall be filed with the commissioner and 7 with the coordinator of the special traffic options program for driving 8 while intoxicated established pursuant to section eleven hundred nine- 9 ty-seven of this article, and shall be made available to the court upon 10 request. Nothing contained herein shall be construed to require any 11 governmental entity to create such a victim impact program. 12 (g) The office of probation and correctional alternatives shall recom- 13 mend to the commissioner of the division of criminal justice services 14 regulations governing the monitoring of compliance by persons ordered to 15 install and maintain ignition interlock devices to provide standards for 16 monitoring by departments of probation, and options for monitoring of 17 compliance by such persons, that counties may adopt as an alternative to 18 monitoring by a department of probation. 19 S 2. Paragraph (b) of subdivision 2 of section 511 of the vehicle and 20 traffic law, as amended by chapter 607 of the laws of 1993, is amended 21 to read as follows: 22 (b) Aggravated unlicensed operation of a motor vehicle in the second 23 degree is a misdemeanor. When a person is convicted of this crime under 24 subparagraph (i) of paragraph (a) of this subdivision, the sentence of 25 the court must be: (i) a fine of not less than five hundred dollars; and 26 (ii) a term of imprisonment not to exceed one hundred eighty days; or 27 (iii) where appropriate a sentence of probation as provided in subdivi- 28 sion six of this section; or (iv) a term of imprisonment as a condition 29 of a sentence of probation as provided in the penal law and consistent 30 with this section. When a person is convicted of this crime under 31 subparagraph (ii), (iii) or (iv) of paragraph (a) of this subdivision, 32 the sentence of the court must be: (i) a fine of not less than [five 33 hundred] ONE THOUSAND dollars nor more than [one] TWO thousand FIVE 34 HUNDRED dollars; and (ii) a term of imprisonment of not less than seven 35 days nor more than one hundred eighty days, or (iii) where appropriate a 36 sentence of probation as provided in subdivision six of this section; or 37 (iv) a term of imprisonment as a condition of a sentence of probation as 38 provided in the penal law and consistent with this section. 39 S 3. Paragraph (b) of subdivision 3 of section 511 of the vehicle and 40 traffic law, as separately amended by chapters 786 and 892 of the laws 41 of 1990, is amended to read as follows: 42 (b) Aggravated unlicensed operation of a motor vehicle in the first 43 degree is a class E felony. When a person is convicted of this crime, 44 the sentence of the court must be: (i) a fine in an amount not less than 45 [five hundred] TWO THOUSAND dollars nor more than five thousand dollars; 46 and (ii) a term of imprisonment as provided in the penal law, or (iii) 47 where appropriate and a term of imprisonment is not required by the 48 penal law, a sentence of probation as provided in subdivision six of 49 this section, or (iv) a term of imprisonment as a condition of a 50 sentence of probation as provided in the penal law. 51 S 4. This act shall take effect on the one hundred twentieth day after 52 it shall have become a law.